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Brussels, 1 September 2005
Return in the EU
Today the Commission adopted a proposal for a Directive on common standards on return. The term “return” in the context of this proposal solely concerns persons staying illegally in the EU. These persons do not, or no longer, fulfil the conditions for entry into, presence in, or residence in the territories of the Member States either because they entered illegally, overstayed their visa or residence permit, or because their asylum claim has been finally rejected. These persons have no legal status enabling them to stay and need to be obliged to leave the territory of the Member States. It may be that illegal migrants or rejected asylum seekers agree to return voluntarily. This clearly should be encouraged. However, Member States need to be able to compel third country nationals’ to respect their obligation to return, if circumstances require.
Currently, Member States’ legislation on returning illegally staying third country nationals differs widely. Both the terminology used in national legislation and the substantive provisions applying to return, removal, use of coercive force, temporary custody and re-entry are different from Member State to Member State. This leads to difficulties in situations involving more than one Member State (for example: a person found to be staying illegally in Member State A is apprehended in Member state B – Should that person be permitted a second opportunity to challenge his return in MS B including legal remedies, with the inherent risk of “legal remedies shopping” ?) This situation also has a distorting effect on the repartition/movement of illegal immigrants (who may prefer to move to those MS which have the most relaxed rules) within the EU and it sends a bad signal to the outside world in terms of the EU's willingness to combat illegal immigration effectively. In the absence of basic common rules and terminology in this field, further harmonisation, based on mutual trust of MS into their national systems, will be difficult, if not impossible.
Quantifying the phenomenon
Reliable estimation for the number of illegal immigrants who have entered or are present illegally on the territory of the Member States is difficult to make. There are, however, a number of indicators which can help us understand and draw conclusions regarding illegal immigration into the EU. Data compiled by the Commission services in the preparation of the proposal for a European Return Fund show that, in 2004 in the EU(25), 650.000 return decisions had been issued, and that 164 000 forced returns and 48.000 voluntary returns took place. National return trends are varied, across Europe. Increased migration pressure during the next decades seems very likely in view of the economic and political situation in many countries of origin and with regard to demographic forecasts. Illegal migratory movements are likely to continue at a significant rate as long as ‘push’ factors in third countries and ‘pull’ factors in the EU remain important.
Organised criminal networks have a direct interest in illegal migration. Smuggling and trafficking in human beings has become a prominent field of their activity throughout Europe. A common return policy should be an integral part of the fight against illegal immigration. The credibility of the EU migration policy and the rule of law are at stake when illegal residents succeed in staying in the EU despite being subject to an issued return decision. Such a situation would further impede the development of a necessary, well managed immigration policy accepted by the wider public in the Member States. It could also lead to an increase in xenophobia and could be used as an argument by extremist anti-migration movements in Member States.
Policy and legal context
In its Communication on a Common Policy on Illegal Immigration of 15 November 2001 the Commission pointed out that return policy is an integral and crucial part of the fight against illegal immigration. Return policy needs to be based on three elements: common principles, common standards and common measures. The Green Paper on a Community Return Policy of 10 April 2002 elaborated in more detail on the issue of return as an integral part of a comprehensive Community Immigration and Asylum Policy. It highlighted the need for approximation and improved co-operation on return among Member States and put on the table a number of possible elements for a future legislative proposal on common standards in order to trigger a broad debate among relevant stakeholders.
The ensuing Commission Communication on a Community Return Policy on Illegal Residents of 14 October 2002 took into account the results of this public consultation process and sketched a concrete programme for further action, putting particular emphasis on a holistic approach. It made clear that “...for Community action for return to be fully effective, it must fit smoothly into a genuine management of migration issues, requiring crystal-clear consolidation of legal immigration channels and of the situation of legal immigrants, an effective and generous asylum system based on rapid procedures offering access to true protection for those needing it and enhanced dialogue with third countries which will increasingly be invited to be partners in dealing with migration.” Based on this Communication, the Council adopted its Return Action Programme of 28 November 2002 in which it called for improved operational co-operation among Member States, intensified co-operation with third countries and the establishment of common standards with the aim of facilitating operational return.
Finally “The Hague Programme”, adopted by the 4/5 November 2004 Brussels European Council, resumed this issue and expressly asked for the establishment of common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. It called for the submission of a Commission proposal in 2005.
Content of the Proposal
The objective of this proposal is to provide for clear, transparent and fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry while taking into full account the respect for human rights and fundamental freedoms of the persons concerned. To this end, the present proposal, inter alia,
• establishes the rule that illegal stay should be ended through a fair and transparent procedure;
• promotes the principle of voluntary return by establishing a general rule that a "period for departure" should normally be granted;
• establishes a harmonised two-step procedure which involves a return decision as a first step and, if necessary, the issuing of a removal order as a second step, thus aligning to a certain extent the currently divergent Member States systems;
• addresses the situation of illegally staying persons who cannot be removed;
• provides for a minimum set of procedural safeguards;
• limits the use of coercive measures, binds it to the principle of proportionality and establishes minimum safeguards for the conduct of forced return;
• gives a European dimension to the effects of national return measures by establishing a re-entry ban valid throughout the EU;
• rewards good compliance (including an option to withdraw any re-entry ban), and penalises non-compliance (including an option to extend any re-entry ban);
• limits the use of temporary custody (maximum period of 6 months), binds it to the principle of proportionality and establishes minimum safeguards for the conduct of it;
• addresses situations where a third-country national who is the subject of a removal order or return decision issued by a Member State is apprehended in the territory of another Member State.
Decision-making in Council and Parliament
This legislative proposal is based on Article 63 (3) (b) of the EC Treaty and, as a consequence, will be subject to the co-decision procedure.
How will this Directive interact with the proposed Return Fund ?
Both the Return Fund and the proposed Directive will be essential parts of a comprehensive EU return policy. The proposed Directive will complement the Border Fund insofar as it will establish a common interpretation and common standards amongst Member States of who can be returned and how to proceed in implementing return measures.
Technical details/update on the financial instrument:
The Commission has launched the preparatory phase of a European Return Fund. The call for proposals concerning the Preparatory Actions 2005 (15 Mio €) is open since 24 August 2005 (deadline 31 October 2005). The preparatory actions aim at supporting the efforts made by Member States to improve the management of return in all its dimensions by co-financing specific actions such as voluntary return programmes, plans for enforced return as well as the organisation and execution of joint flights for removal. The Preparatory Actions 2006 (also 15 Mio €) will follow.
Simultaneously the proposal for a Decision establishing the European Return Fund for the period 2008-2013 as part of the General Programme “Solidarity and Management of Migration Flows” (presented by the Commission to the Council in April 2005), have just started to be discussed in the Council. A primary objective of this instrument should be the promotion of integrated return management. The financial reference amount for the implementation of the Fund from 2008 to 2013 shall be 759 million €.
1.2. The ad hoc request to MS undertaken during the preparation of the
proposal for a Return Fund
Therefore, it can be concluded that only one third of the return decisions are effectively implemented and result in removal.
1. Member States shall supply to the Commission (Eurostat) statistics relating to the number of third-country nationals who go back to their countries of origin, transit, or another third country, whether voluntarily or enforced, following an administrative or judicial decision or act imposing an obligation to return, disaggregated by age and sex, and by the citizenship of the persons returned.
2. The statistics referred to in paragraph 1 shall relate to reference
periods of one calendar year and shall be supplied to the Commission (Eurostat)
within three months of the end of the reference year. The first reference year
shall be 2006.
Source: Member States.
Voluntary return and enforced return
DATA FROM THE CIREFI DATA COLLECTION
 SEC (2005) 435
 COM (2005) 123